IMMIGRATION CONSEQUENCES AND WARNINGS
Given the recent changes to the Immigration and Nationality Act, is it constitutionally adequate to simply state, at the time of the entrance of a guilty plea, that the plea "could" result in immigration consequences. More specifically, is it ineffective assistance of counsel if the attorney merely states that immigration consequences could result?
First, in order to establish ineffective assistance of counsel in the context of a guilty plea, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. United States v. Cuoto, 311 F.3d 179, 187 (2d Cir. 2002) .
The Second Circuit Court of Appeals has held that an attorney's failure to inform a defendant of the immigration consequences of a guilty plea does not constitute ineffective assistance of counsel, see United States v. Santelises, 476 F.2d 787, 704 (2d Cir. 1975) (per curiam), but that an attorney's affirmative misrepresentation about the deportation consequences of a guilty plea can constitute ineffective assistance, see Couto, 311 F.3d at 188.
In a case I recently argued before the Second Circuit Court of Appeals, the court followed the Santelises court's reasoning in holding that Petitioner was not denied effective assistance of counsel when his attorney advised him that his guilty plea could have immigration consequences. The court further reasoned that the statements "could result" in deportation and that he "may be deported" were not misleading but rather were an accurate statement about the situation. Thus, Petitioner was not denied ineffective assistance of counsel.
As general advice, before entering a plea, always check with counsel. The immigration consequences can be significant.
